LAW2043 Contemporary Issues in Property Law Coursework Assessment First-Class Answer

Updated: Apr 19

Submitted by: Charlotte Wood


Question: Western museums should return all stolen and looted artefacts to their countries of origin. Critically discuss and provide examples.


Geoffrey Robertson QC, criticised the British Museum as hosting an “unofficial ‘British Museum Stolen Goods Tour’”[1] and recommended that the Museum would be “even greater if it washed its hands of the blood and returned Elgin’s loot.”[2] Whilst to some extent this is the case, it is a contentious issue that has acquired vast commentary by numerous legal, political and historical academics, demonstrating how the possession of stolen and looted artefacts by Western museums is unjust and should be returned in their entirety to the original owners; an opinion which best reflects my own. The main debate being examined when forming an opinion on this issue of law is a Cultural Nationalism v Cultural Internationalism analysis posed by Merryman[3] considered in relation to the UNESCO convention[4] and the Hague Convention 1954[5]. The debate and legislation are interlinked meaning it is crucial to analyse in tandem with one another as to whether Western Museums should return stolen artefacts. It is also important to consider the modern appropriation of art in the 21st century, drawing comparisons to demonstrate how the theft of artefacts is still a frequent occurrence albeit through a different method. The sole focus of this essay will be surrounding the British Museum’s possession of the Elgin Marbles and sculptures from the Mausoleum at Halicarnassus in contrast to global unlawful appropriations of Banksy’s artwork. This demonstrates how the unlawful appropriation of artefacts is still occurring in the modern-day and how if a consolidated piece of international legislation is not introduced then the British Museum could continue to obtain artefacts of questionable legality and ownership. Suggesting that in decades to come Banksy could transition from a street name to a museum name and could have the potential to attract vast legal and political commentary like the Elgin Marbles and the sculptures from the Mausoleum at Halicarnassus.


The Elgin Marbles

For decades, the Elgin Marbles have been at the heart of the legal, political and historical debate and have been at the forefront of the criticism of the inventory of the British Museum. The removal of the marbles has been described as the “rape of the Parthenon”[6], the acquisition of the marbles has been deemed by historians as inevitable during the reign of the Ottoman empire, as they did not understand their “artistic and cultural importance”[7]; as Merryman implied, the motivation for Lord Elgin was one of nationalism resulting in the acquisition and the protection of the Marbles for England’s private collection.[8] This embodiment of nationalism is a stance that Western Museums have adopted to this modern-day, as they defend rights over these artefacts under the idea of “cultural internationalism”[9], favouring the legal protection of their ownership rights under the Hague Convention[10] as the emphasis is focused on the protection of cultural property for the entirety of mankind[11]. The British Museum has argued that they are now a part of British cultural heritage, and form the “physical embodiment of the history of imperialism”[12], however despite this MacMillian has been critical of the British Museum as he states that they have ‘confused history with heritage’[13]. This is where my belief stands, for decades Western museums have hidden behind the mask of ‘cultural internationalism’ in order to hold onto a warped version of history. Whereas, it could be argued that the countries persisting in a claim for the return of the looted artefacts take a ‘Cultural Nationalism’[14] approach, favouring rights held under the UNESCO[15] convention, which favours the retention of artefacts by the country of origin and the return of artefacts which are being held by others. In drawing a comparison of the two conventions, it clearly demonstrates the polar opposites of the ‘Cultural Internationalism’ v ‘Cultural Nationalism’[16] debate, and the reasons why there is still very much a toxic relationship between Western Museums and the countries claiming ownership over looted and stolen artefacts. International law would deeply benefit from some clarity in global conventions in order to move on from this age-long debate of ownership. The Elgin Marbles are just one example of a looted artefact, which are not part of the cultural history of Great Britain; whilst they may be part of colonial heritage, it is Greece where they ultimately belong. Stephen Fry has argued that it would be much better for the British Museum to showcase the journey which the Marbles have embarked on, rather than continue to blindly hold onto them as our own[17]. In 2016, the Greek authorities sought the assistance of the European Court of Human Rights (ECtHR), in an attempt to regain ownership over the Elgin Marbles. Barrister Amal Clooney, ahead of the case described this as “an injustice that has persisted for too long”[18], (a view that supports my own) again enforcing the opinion that Western Museums should return all looted and stolen artefacts to their countries of origin, to retain them indefinitely is a deep global injustice. In the case of Syllogos Ton Athinaion v the United Kingdom[19], Greece alleged that the refusal of mediation and the retention of the Elgin Marbles by the United Kingdom was a violation of their Article 8 right[20], which the Greek authorities argued that this breach “stemmed from the failure to respect the applicant’s ability to protect the monuments of Athens”[21] thus denying Greece of their cultural identity and legal claim for the Marbles. Unfortunately, in this case, Greece was unable to provide enough evidence to satisfy the breach and in failing to convince the court on this point, the court held that Article 8 did not “give rise to a general right to protection of cultural heritage”[22]. However, despite the failure of Greece to regain ownership of the Elgin Marbles, this was a move in the right direction as more people are questioning the legality of the artefacts held by Western Museums resulting in a slow, but definite change in the thinking of society. This is demonstrated in recent Brexit trade talks where the Elgin Marbles are still at the forefront of discussion[23] as the European Union seeks to claim these as part of trade discussions. Ewan McGregor (Director of the British Museum) in response, has continually defended the Elgin Marbles as part of the Museums itinerary stating that they are “in the best position to conserve the artefacts and to present this encyclopaedic collection”[24], again reinforcing the ‘Cultural Internationalism’ justification for preserving the “cultural heritage of all mankind”[25]; an approach supported by the Hague Convention[26] as previously discussed.


Turkish request for the Mausoleum of Halicarnassus

An alternative area of contention is the retention of sculptures from the Mausoleum at Halicarnassus. In 1852 (again during the era of the Ottoman Empire), British archaeologist Charles Thomas Newton excavated the Mausoleum at Halicarnassus and acquired statues and sculptures which he presented to the British Museum. Like the Elgin Marbles, the British Museum has taken the stance that these artefacts were legally obtained and therefore owned by Britain, not the country of origin. However, as Yaşar Yıldız[27] has stated “there is no written permission document”[28] which leaves the ownership rights of the sculptures in a grey area, as with no documentation it is difficult to establish who had ownership at the time they were taken and who had the right to discharge ownership from Turkey to Great Britain. Macmillian has suggested that the ‘Turkish Mausoleum of Halicarnassus represents the assertion of sovereignty in the face of Western hostility’[29], however, it could be argued that this is not the case whilst Turkey is denied ownership of the artefacts held in the British Museum. The British Museum is continually protected under The British Museum Act 1963[30], which forbids except in very exceptional circumstances the disposing of the Museums artefacts. As parliamentary sovereignty is at the core of the constitution of the UK, it would be difficult for the museum to give up their artefacts whilst this Act[31] is in use. It could be argued that when dealing with cultural property where an alternative country of origin is in question, the national legislation should be set aside in favour of international legislation such as the Hague Convention[32] or the UNESCO[33] convention (despite their own difficulties and contrasting outcomes once implemented). Through the British Museum Act[34], it could also be argued that this is a cover as the UK, whilst not willing to admit it, recognises that the majority of its artefacts are either looted or stolen, therefore illegally obtained. To admit illegal ownership of the artefacts would result in a catastrophic decline in the collections of the majority of Western Museums. In this understanding, it would be detrimental to museums to return all items of questionable ownership; the returning of the sculptures from the Mausoleum at Halicarnassus or the Elgin Marbles, would instigate the start of a bombardment of legal claims against the British Museum and Western Museums as a whole. Despite this, it is unjust to retain these artefacts as they were taken illegally regardless of how injurious the effect would be. Turkey’s claim for the return of the sculptures taken from the Mausoleum at Halicarnassus was regarded as significant for the Greek authorities as they sought experience as to how they should go about their claim for the Elgin Marbles. The sole base of their claim lay in their newly advanced purpose-built museums and stated that these sculptures were part of the countries “national property”[35], with this Turkey formed the foundations of a potential claim against the British Museum for the return of these artefacts[36]. The necessity for Turkey’s desire to prove that they had the means to look after the artefacts, should their ownership be regained was deeply important as conservation and preservation are of the utmost importance for Western museums[37], and most claims for ownership fail because of the country of origin failing to provide significant evidence that they can adequately maintain the artefacts. This would also help to satisfy the preservation requirement in the Hague Convention[38] and the UNESCO[39] convention allowing the claim to proceed further.

To return back to Merryman’s ‘Cultural nationalism’ v ‘Cultural internationalism’[40] debate, it is apparent that the British Museum continues to hide behind a cultural internationalism stance. This enforces academic debate which is highly critical of the British Museum and as Lowenthal has stated Western museums, have continued their colonial justification by acquiring “global heritage” and almost disguising it as “global stewardship”[41]. However, Colonialism was just a means to justify the taking over of another nation and the modern-day necessity to recognise the damage that colonialism has caused is great, so the continual justification that cultural property is “global heritage”[42] is wrong and unjust. In commenting on the Africa museum in Brussels, Tiffany Jenkins states that the challenge lies in “decolonising the museum” and the importance of facing “up to the past”[43], which it can be argued that the British Museum should recognise the past and decolonise the museum by returning the artefacts which have been stolen or looted such as the Elgin marbles and the sculptures from the Mausoleum of Halicarnassus.


Continual exploitation of Cultural property: Banksy’s street art

Moving away from the Ottoman empire, the illegal appropriation of cultural property is still occurring in the 21st century. The illegal appropriation of art, specifically street art is a subject with much media coverage and global debate. The artist Banksy is famous for his anonymity and politically motivated graffiti masterpieces on streets all around the world. The purpose of his artwork is for everyday people to enjoy, it is not meant for a museum or to be permanent. However, the name Banksy causes much discussion as the majority of his work is sold at a private auction via Sotheby’s auctioneers. Mei Moses, an art expert at Sotheby’s has stated that ‘his cultural significance… [has] contributed to the desirability of his art’ and ‘the average compound annual return for Banksy is 8.5%, with 76.5% of works increasing in value’[44]. This then begs the question as to why Banksy’s artwork is going up for auction despite the artist not consenting to its sale. It is safe to assume that the artist believes that his artwork, often reflecting the oppressed nature of the public is for the temporary cultural benefit and mutual ownership of all, not for a private collector. This emphasis on the intention for the work to be shared by all for a limited period of time was demonstrated in the case of Pest Control Office[45] which was a claim by Banksy’s press office to stop the unauthorised merchandising of his artwork in Italy. This was a significant ruling as it recognised Banksy’s rights to his artwork, which one could then argue that if he has these intellectual property rights then this should indicate that he has the rights to decide whether the artwork is owned by the public collectively or for sale by private auction. However, this is not the case as globally his masterpieces are going on sale without a discharge of ownership from the artist despite his cultural significance. It could therefore be argued that private owners of his artwork and the auction houses selling his pieces are taking a ‘cultural internationalism’[46] approach, justifying the private ownership of the work by stating that they are doing this for the sake of preservation for future owners. One could therefore assume that under this understanding of Banksy’s cultural significance, it would be possible that one day the British Museum could hold some of his artwork within the museum’s collections; if this were to be the case then the legality of the ownership of a Banksy painting could very much be questioned in the same way as the Elgin Marbles or the sculptures of the Mausoleum of Halicarnassus. It could then be argued that the way in which Western museums acquire artefacts for their collections is a vicious circle of questionable legality; until there is a clear method of legally obtaining artefacts, with no doubt over who owns them, this will continue to be a common occurrence. Riccio and Pezza (prominent property law academics) have analysed the legality of Banksy’s art, implying that whilst the artwork is on walls of buildings and places in the street that the artwork belongs to the owner of the walls which they are on. However, they have argued that the crucial point in which this becomes questionable is when the art is removed from the streets, stating that “the removal of an artwork and its relocation in a different context, namely a museum, does constitute an illegal practice”[47], thereby insinuating that private ownership and sales are illegal and the artwork should remain untouched. Over the past few years, there have been numerous exhibitions showcasing Banksy’s work globally without the artist's authorisation[48], it could be argued that this is the start of Banksy slowly transitioning from a street name to a museum name, and if this is the case society needs to question the legality of this transition. If Banksy becomes a museum name, in decades to come will the legality of his artwork in Western museums cause as much contention and academic debate as Lord Elgin’s Marbles and the sculptures from the mausoleum at Halicarnassus?


Conclusion

In closing, it is apparent that Western museums hide behind a ‘cultural internationalism’[49] argument to justify their retention of artefacts, stating that they are the best option for the conservation and preservation of these cultural items. Whilst the upkeep and value of these cultural artefacts are of great global importance, this is just a cover to allow unlawful retention to continue. In modern society, it would be difficult to argue why countries such as Greece and Turkey are not in a position to look after and cherish the items which they seek back from the British museum as previously discussed. To go back to Geoffrey Robertson’s claim of the British museum hosting an “unofficial ‘British Museum Stolen Goods Tour’”[50] it is very much the case. This unlawful retention of artefacts from the colonial empire of Great Britain is unjust, and to hide behind legislation such as the British Museum Act[51] and the Hague Convention[52] is only deepening the issue as these separate pieces of legislation justify the retention of artefacts by the British Museum, the convention emphasises the preservation of cultural artefacts for all mankind, thus justifying the retention of artefacts by Western museums. Whilst there ceases to exist a unified and international piece of legislation that focuses on the importance of the preservation of cultural artefacts for all mankind, which also balances this against the importance for the country of the artefact’s origin, to have the opportunity to preserve the artefacts which form part of their heritage and history first, there will continue to be much contention surrounding the ownership of museum artefacts which would be an unjust situation which would continue to be wrong. As we progress into a new age, we are starting to see the modern unlawful appropriation of artwork appear more frequently in auction houses for private sale and in museums. This situation is the start of a new chapter for the illegal nature of Western Museums collections, which in years to come could form part of the British Museums ‘Stolen goods tour’[53] as Banksy continues to gain greater cultural significance and status.


Bibliography:


Case Law:

  • Pest Control Office Ltd v 24 Ore Cultura s.r.l [2019] E.C.D.R. 15

  • Syllogos Ton Athinaion v the United Kingdom App. No. 48259/15 (23 June 2016)

Legislation:

  • European Convention on Human Rights (ECHR)

  • The British Museum Act 1963

  • The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954

  • The World Heritage Convention 1972 (UNESCO Convention)

Secondary Sources:

  • Deepa Babington, ‘Amal Clooney weights in on Greek battle for Parthenon Marbles’ (Thomson Reuters, 15 October 2015) <https://www.reuters.com/article/us-greece-marbles-idUSKCN0I41SL20141015> accessed 1 March 2020

  • Jenkins T, 2019. The Last Colonial Museum. [podcast] Behind the Scenes at the Museum. Available at: <https://behindthescenesatthemuseum.podbean.com/e/the-last-colonial-museum/> [Accessed 18 March 2020].

  • Knox C, They’ve lost their Marbles: 2002 Universal Museums’ Declaration, the Elgin Marbles and the future of the repatriation movement, 29 Suffolk Transnat’l L.Rev.315 (2006)

  • Lowenthal D, The Heritage Crusade and the Spoils of History (Viking, 1997) at p 240-1

  • MacMillian F, The Protection of Cultural Heritage: common heritage of mankind, national cultural ‘patrimony’ or private property? (2013) 64 (3) NILQ 351-364

  • MacGregor N, ‘To Shape the Citizens of “That Great City, the World”’ in JCuno (ed), Whose Culture? The Promise of Museums and the Debate over Antiquities (Princeton University Press 2009) 39–54.

  • Merryman J, Thinking about the Elgin Marbles (1985) 83 (8) Michigan Law Review at 1906

  • Merryman J, ‘Two ways of Thinking about Cultural Property’ (Oct 1986) AJIL 80 No. 4. (Oct 1986) pp. 831-853

  • MUĞLA, ‘Mausoleum of Halicarnassus draws tourists’ (Hurriyet news, 1 June 2018) <https://www.hurriyetdailynews.com/mausoleum-of-halicarnassus-draws-tourists-132668> accessed 1 April 2020

  • G Riccio and F Pezza, ‘Copyright in street art and graffiti: a comparative legal analysis’, Ent. L.R. 2019, 30(2), 35-43, 5

  • Robertson, Geoffrey Who Owns History? : Elgin’s Loot and the Case for Returning Plundered Treasure (Biteback Publishing 2019) 14

  • Rothenberg J, “DESCENSUS AD TERRAM”: THE ACQUISITION AND RECEPTION OF THE ELGIN MARBLES (1977) at 143-144

  • Sotheby’s, ‘Works by Banksy at Sotheby’s’ (Sotheby’s Auctioneers) <https://www.sothebys.com/en/ https://www.sothebys.com/en/artists/banksy artists/banksy> accessed 25 March 2020

  • Stephen Fry, ‘A Modest Proposal’ (Stephen Fry, 19 December 2011) <http://www.stephenfry.com/2011/12/a-modest-proposal/> accessed 25 March 2020

  • Unknown author, ‘Banksy Exhibition’ (2019) <https://banksyexhibition.com/> (accessed 30 March 2020)

  • Unknown Author, ‘Brexit will strengthen European support for return of Parthenon Marbles, says Greek minister’ (Thomson Reuters, 30 January 2020) <https://www.reuters.com/article/us-greece-britain-marbles/brexit-will-strengthen-european-support-for-return-of-parthenon-marbles-says-greek-minister-idUSKBN1ZT1XF> accessed 10 April 2020

  • Unknown Author, ‘Of Marbles and Men: Turkey Gets Tough with Foreign Museums and Launches a New Culture War’ (The Economist, 19 May 2012) <https://www.economist.com/books-and-arts/2012/05/19/of-marbles-and-men> accessed 3 March 2020

  • Unknown Author, ‘Turkish Campaigners May Go to European Court of Human Rights over Mausoleum of Halicarnassus in British Museum’ <www.elginism.com/similar-cases/turkish-compaigners-may-go-toeuropean-court-of-human-rights-over-mausoleum-of-halicarnassus-in-british-museum/20121217/6770/> accessed 3 March 2020

  • W. St. Clair, Lord Elgin and The Marbles (2 ed. 1083) at 102-03

  • P Yu, ‘Cultural Relics, Intellectual Property and Intangible Heritage’ (2008) 81 Temple Law Review 433, 471–73

[1] Robertson, Geoffrey Who Owns History? : Elgin’s Loot and the Case for Returning Plundered Treasure (Biteback Publishing 2019) 14 [2] Ibid, 15 [3] Merryman J, ‘Two ways of Thinking about Cultural Property’ (Oct 1986) AJIL 80 No. 4. (Oct 1986) pp. 831-853 [4] The World Heritage Convention 1972 (protected by the United Nations Educational, Scientific and Cultural Organisation also referred to as the UNESCO convention) [5] The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 [6] J. Rothenberg, “DESCENSUS AD TERRAM”: THE ACQUISITION AND RECEPTION OF THE ELGIN MARBLES (1977) at 143-144 [7] W. St. Clair, Lord Elgin and The Marbles (2 ed. 1083) at 102-03 [8] J. Merryman, Thinking about the Elgin Marbles (1985) 83 (8) Michigan Law Review at 1906 [9] N-3 [10] N-5 [11] Knox C, They’ve lost their Marbles: 2002 Universal Museums’ Declaration, the Elgin Marbles and the future of the repatriation movement, 29 Suffolk Transnat’l L.Rev.315 (2006) [12] F MacMillian, The Protection of Cultural Heritage: common heritage of mankind, national cultural ‘patrimony’ or private property? (2013) 64 (3) NILQ 351-364 [13] ibid [14] N-3 [15] N-4 [16] N-3 [17] Stephen Fry, ‘A Modest Proposal’ (Stephen Fry, 19 December 2011) <http://www.stephenfry.com/2011/12/a-modest-proposal/> accessed 25 March 2020 [18] Deepa Babington, ‘Amal Clooney weights in on Greek battle for Parthenon Marbles’ (Thomson Reuters, 15 October 2015) <https://www.reuters.com/article/us-greece-marbles-idUSKCN0I41SL20141015> accessed 1 March 2020 [19] App. No. 48259/15 (23 June 2016) [20] European Convention on Human Rights (ECHR) (Art. 8 Right to respect for private and family life) [21] N-16 [22] N-16 [23] Unknown Author, ‘Brexit will strengthen European support for return of Parthenon Marbles, says Greek minister’ (Thomson Reuters, 30 January 2020) <https://www.reuters.com/article/us-greece-britain-marbles/brexit-will-strengthen-european-support-for-return-of-parthenon-marbles-says-greek-minister-idUSKBN1ZT1XF> accessed 10 April 2020 [24] N MacGregor, ‘To Shape the Citizens of “That Great City, the World”’ in JCuno (ed), Whose Culture? The Promise of Museums and the Debate over Antiquities (Princeton University Press 2009) 39–54. [25] N-3 [26] N-5 [27] Yaşar Yıldız was the former director of Bodrum castle [28] MUĞLA, ‘Mausoleum of Halicarnassus draws tourists’ (Hurriyet news, 1 June 2018) <https://www.hurriyetdailynews.com/mausoleum-of-halicarnassus-draws-tourists-132668> accessed 1 April 2020 [29] N-12 [30] The British Museum Act 1963 [31] ibid [32] N-5 [33] N-4 [34] N-28 [35] Unknown Author, ‘Of Marbles and Men: Turkey Gets Tough with Foreign Museums and Launches a New Culture War’ (The Economist, 19 May 2012) <https://www.economist.com/books-and-arts/2012/05/19/of-marbles-and-men> accessed 3 March 2020 [36] Unknown Author, ‘Turkish Campaigners May Go to European Court of Human Rights over Mausoleum of Halicarnassus in British Museum’ <www.elginism.com/similar-cases/turkish-compaigners-may-go-toeuropean-court-of-human-rights-over-mausoleum-of-halicarnassus-in-british-museum/20121217/6770/> accessed 3 March 2020 [37] P Yu, ‘Cultural Relics, Intellectual Property and Intangible Heritage’ (2008) 81 Temple Law Review 433, 471–73 [38] N-5 [39] N-4 [40] N-3 [41] David Lowenthal, The Heritage Crusade and the Spoils of History (Viking, 1997) at p 240-1 [42] ibid [43] Tiffany Jenkins, 2019. The Last Colonial Museum. [podcast] Behind the Scenes at the Museum. Available at: <https://behindthescenesatthemuseum.podbean.com/e/the-last-colonial-museum/> [Accessed 18 March 2020]. [44] Sotheby’s, ‘Works by Banksy at Sotheby’s’ (Sotheby’s Auctioneers) <https://www.sothebys.com/en/ https://www.sothebys.com/en/artists/banksy artists/banksy> accessed 25 March 2020 [45] Pest Control Office Ltd v 24 Ore Cultura s.r.l [2019] E.C.D.R. 15 [46] N-3 [47] G Riccio and F Pezza, ‘Copyright in street art and graffiti: a comparative legal analysis’, Ent. L.R. 2019, 30(2), 35-43, 5 [48] Unknown author, ‘Banksy Exhibition’ (2019) <https://banksyexhibition.com/> (accessed 30 March 2020) [49] N-3 [50] N-1 [51] N-30 [52] N-5 [53] N-1